This week's Daily Record column is entitled "In New York, Privacy Trumps Technology."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Last week the New York Court of Appeals handed down its decision in People v. Weaver, a case I wrote about when oral arguments occurred in March.

At issue in Weaver was whether GPS tracking device evidence obtained by law enforcement without a warrant should have been suppressed.

The disputed evidence was obtained after a GPS tracking device was placed on the defendant’s car in the absence of a warrant and his movements were tracked for 65 days without his knowledge. He was eventually arrested and charged with 2 counts of burglary, for which he was later convicted.

The Appellate Division, Third Department, concluded that the evidence obtained from the GPS device was admissible since the defendant had no expectation of privacy regarding movements that would have been visible via the naked eye.

In my earlier article, I vehemently disagreed with this conclusion, urging that the constitutional interpretation of our laws must conform to the ever-changing technological landscape, and that the failure to do so would render our laws and constitutional protections obsolete:

Technological advances are changing our lives in ways we never before imagined. New devices are being invented that enhance the ability of law enforcement officers to observe and follow our movements in ways not envisioned just 10 years ago. Who knows what capabilities law enforcement will have 20 years from now?…Judicial oversight of the use of advanced technologies is necessary to prevent baseless, invasive and limitless intrusions into the lives of law-abiding Americans.

I was pleased to learn that the New York Court of Appeals agreed, ruling that the evidence was inadmissible.

The Court noted that GPS technology does not simply enhance the senses, but rather allows a “new technological perception” that could not otherwise be obtained without massive amounts of manpower, equipment and funding.

Also of importance to the Court in reaching its determination was the vast amount of personal information that could be collected via constant GPS tracking of a person’s whereabouts, including the individual’s political, professional, religious and amorous associations.

Accordingly, the Court concluded that the evidence should have been suppressed pursuant to the New York State Constitution:

Technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.

Judge Smith, Judge Read and Judge Graffeo dissented. In Judge Smith’s dissent, he asserted that the majority’s holding amounted to the constitutionally unsupportable proposition that certain technological devices were too advanced to be utilized by law enforcement in the absence of a warrant.

To an extent, I agree with Judge Smith—the majority’s holding encompasses the idea that the complexity and invasiveness of emerging technologies warrants judicial scrutiny of the methods utilized by law enforcement in order to prevent abuse. We part ways to the extent that he asserts that this proposition is unconstitutional.

Rather, the majority’s holding is simply an acknowledgement that the right to be free from unlawful governmental intrusions must not be permitted to be whittled away in the face of increasingly intrusive technologies.

Simply put, in New York, the right to privacy should always remain paramount.

It is, for that very reason, that Weaver is one of those heartening decisions that makes me proud to be a New Yorker. It is rare that a lone opinion is able to single-handedly restore my faith in the judicial process and the protections offered by our State Constitution. People v. Weaver is just such a case.

This week's Daily Record column is entitled "Law Practice Management in the Cloud."

A pdf of the article can be found here and my past Daily Record articles can be accessed here.

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Software as a service (SaaS) is defined at Oracle.com as “[a] software delivery model in which a software firm provides daily technical operation, maintenance, and support for the software provided to their client.”

At Webopedia.com “cloud computing” is defined as a “type of computing that is comparable to grid computing, relies on sharing computing resources rather than having local servers or personal devices to handle applications. The goal of cloud computing is to apply traditional supercomputing power (normally used by military and research facilities) to perform tens of trillions of computations per second."

The complexities of modern law practice are such that managing a law office in the absence of practice management software programs is nothing short of impossible. Traditional law practice management software can be expensive, however, cumbersome to navigate and prone to annoying glitches that occur so frequently that your IT consultant becomes a permanent fixture in your law office.

Sound familiar? Well, it doesn’t have to: Law firms today can avoid the headaches caused by traditional practice management software by using the services of any of a number of companies that provide SaaS.

Taking advantage of SaaS law practice management software allows firms to focus on the ever-important task of practicing law while the SaaS provider operates, updates and maintains the practice management software.

Advantages include lower costs due to reduced overhead, less hassle related to maintaining the and upgrading the case management system and greater flexibility, since the Web-based system can be accessed anywhere, at anytime.

Before making the leap to a Web-based practice management system, however, there are a number of important factors to consider.

Learn how the company will handle confidential data, the portability of the data and the format in which information will be provided should your firm choose to remove data from the system.

The contract with an SaaS provider should address those issues and also include a non-disclosure clause that indicates that all data are the property of the law firm and may be exported in a readable format on demand.

The security of your firm’s data is of paramount concern. Security issues to consider include: What type of facility will host the data? How frequently are back-ups performed? Is data backed up to more than one server? How secure are the data centers? What types of encryption methods are used and how are passwords stored? Are there redundant power supplies? Is there more than one server? Where are the servers located? If a natural disaster strikes one geographic region, would all data be lost?

If, after balancing the benefits and drawbacks, you decide to use a Web-based practice management system, there are a number of excellent SaaS providers that offer software to manage law practices online, including Clio (www.goclio.com), Rocket Matter (www.rocketmatter.com) and LawRD (www.lawrd.com).

Each software platform offers unique and useful features, which I’ll be comparing and contrasting later in the month during a screencast at lawtechTalk.com.

When law practice management software creates more problems than it solves, it may be time to make a change. After careful consideration, firms may find that the affordability and ease of use of a Web-based practice management system make it a perfect fit.

Attorneys may just find themselves praising, rather than cursing, newfangled technologies.

It promises to be a great event, where you'll learn to "Run Your Practice Without Running Yourself into the Ground":

In
this two-day workshop, you’ll learn how manage all the moving parts of
a successful law practice and still have a life. But there’s one very
important thing missing – you! One of the greatest challenges you have
is making time for what’s personally important to you – your hobbies,
friends and family.

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